23 February 2011

New developments for volunteers

The new Vetting & Barring Scheme (VBS) regulations set out on 11 February in the Home Office Remodelling Review and backed legislatively by the Protection of Freedoms Bill will make it easier rather than harder for unscrupulous sexual predators to conduct abuse in churches. This is the conclusion of the Churches Child Protection Advisory Service (CCPAS), which has urged the Government to reconsider.

The previous requirement for up to nine million people working with children and vulnerable adults to be registered with the Independent Safeguarding Authority (ISA) will be scrapped so fewer people will need Criminal Records Bureau (CRB) checks. Many aspects of the VBS were seen as disproportionate, bureaucratic and unworkable and the Coalition Government had vowed to review the scheme. However, some aspects of the VBS, such as portability, were seen as beneficial and are being retained.

A new streamlined body merging CRB and ISA will carry out both a criminal records disclosure service and manage barred lists of those who cannot work with vulnerable groups. Transitional arrangements and guidance is anticipated prior to the new regulations being in place by 2012, and while the scheme is being remodelled, existing duties to make referrals to the ISA remain in force.

Some legal requirements under the previous scheme will continue. These include employers' duty to refer individuals who have harmed or pose a risk of harm to the vulnerable. A barred individual will continue to commit a criminal offence if they work with vulnerable groups. Employers who knowingly employ barred people in 'regulated activity' will also face criminal action. However, the definition of regulated activity will be narrowed meaning the range of posts subject to barring decisions will be reduced. The previous requirements for registration and continuous monitoring will also be scrapped thus reducing the overall burden on those posts still within the scope of the scheme. A smaller (and more proportionate) group of roles will in future be defined as regulated activities. The concept of 'controlled activity', where an individual had some contact with children and vulnerable adults, but not as intense, frequent or regular as that deemed a regulated activity, will also be scrapped.

Since the revamped scheme is expected to be self-funding, it is likely that the cost of criminal records disclosure fees will increase.

While CCPAS has welcomed many of the changes which help balance public protection and individual civil liberties, concern was expressed about the overriding objective of protecting vulnerable children and adults being maintained.

Citing the example of Sunday School helpers as an area which could be at risk if barring arrangements are removed, Simon Bass, CEO of CCPAS, said: "This is a major loophole that can and will be exploited by those determined to abuse children and vulnerable adults. It means for example that an abuser who is banned from working in a regulated activity such as teaching may, without any checks, alternatively gain access to children through becoming a Sunday School helper, with potentially devastating consequences. It also means that the Government is prepared to tolerate a level of risk in churches that we - with long and painful experience of dealing with abusers in churches - find unacceptable. We think it inevitable that potential predators will see children in churches as soft targets and will act accordingly if these regulations go through on the nod."

In parallel with the review of the VBS, a separate but aligned review of the broader criminal records regime was undertaken by Sunita Mason, the Government's independent advisor on criminality information management. Phase one of this review has been published and can be accessed here.

In an important case decided in the Court of Appeal in January, volunteers such as Sunday School teachers, youth leaders and all other volunteers linked to the Christian world have been preserved from the consequences of being subjected to equality legislation.

Voluntary organisations will be relieved by this outcome which could have otherwise caused them serious difficulties. The Christian Institute intervened in the case, urging the Court of Appeal not to treat volunteers as though they had the same rights as employees under a European Equal Treatment Directive.

If the ruling had gone the other way, churches and organisations that make use of volunteers may have been forced to contend with a minefield of equality laws that potentially threaten religious liberty and all volunteer roles.

The specific case considered by the court involved a volunteer at a Citizens Advice Bureau. She claimed to have suffered unfavourable treatment because of her disability and demanded that her volunteer role should be treated as an "occupation" for the purposes of discrimination law. Her claim was supported by the Equality and Human Rights Commission. Her argument failed at an original employment tribunal, then at the Employment Appeals Tribunal, and most recently at the Court of Appeal.

Lord Justice Elias ruled: "The concept of worker has been restricted to persons who are remunerated for what they do. The concept of occupation is essentially an overlapping one, and I see no reason to suppose that it was intended to cover non-remunerated work."